No Easy Answers

Letters between lawyers re: Reporter Privilege and Libby Waiver of Confidentiality

Exhibits attached to Libby's October 30 Motion [Doc 167]:

• January 5, 2004 Statement and Waiver of Reporter Confidentiality by Libby
• June 22, 2004 Statement of Glenn Kessler
• August 9, 2004 Statement of NBC News
• October 30, 2005 Cooper article, What Scooter Libby and I Talked About
• September 16, 2005 Letter from Libby's counsel, Tate to Fitzgerald (re: Miller having a waiver)
• September 12, 2005 Letter from Fitzgerald to Tate (Miller says she needs Libby's waiver)
• October 16, 2005 Miller article, A Personal Account; My Four Hours Testifying in the Federal Grand Jury Room

Fitzgerald's Opposition to Libby's Motion [Doc 192]

Exhibits attached to Libby's November 21 Reply [Doc 203]:

• August 29, 2005 NYT Editorial, Free Judy Miller
• September 29, 2005 Letter from Miller's counsel, Floyd Abrams to Libby's counsel, Tate

Exhibits attached to Libby's December 20 Notice of Supplemental Exhibits [Doc 222]:

• September 15, 2005 Personal Waiver Letter from Libby to Miller
• September 16, 2005 Letter from Tate to Miller's counsel, Floyd Abrams
• October 16, 2005 van Natta article, The Miller Case: A Notebook, a Cause, a Jail Cell, and a Deal
• July 12, 2006 Novak article, My Leak Case Testimony

Case 1:05-cr-00394-RBW     Document 222     Filed 12/20/2006     Page 1 of 2

NOTICE OF SUPPLEMENTAL EXHIBITS IN CONNECTION WITH MOTION IN
LIMINE TO EXCLUDE EVIDENCE RELATING TO REPORTERS' FIRST
AMENDMENT LITIGATION, CONTEMPT PROCEEDINGS, AND JUDITH MILLER'S
INCARCERATION

    I. Lewis Libby, by and through his counsel, hereby notices his intent to supplement the record. On October 30, 2006, Mr. Libby filed his Motion in Limine to Exclude Evidence Relating to reporters' First Amendment Litigation, Contempt Proceedings, and Judith Miller's Incarceration. Mr. Libby attached several articles and letters to that motion as exhibits.

    Mr. Libby now seeks to supplement the record for this motion with his letter of September 15, 2005, to Judith Miller, a September 16, 2005 letter from his counsel, Joseph A. Tate, to Floyd Abrams, then counsel to Ms. Miller, and October 16, 2005 New York Times article written about Ms. Miller by Don van Natta, Jr., Adam Liptak, and Clifford Levy, and a July 12, 2006 column written by Robert Novak titled My Leak Case Testimony so that the Court has a complete record. These documents are attached as Exhibits A to D of this notice.

From Fitzgerald to Libby's Lawyer, Joseph Tate

September 12, 2005

Dear Mr. Tate:

I am writing you because, after reading several recent media accounts relating to the confinement of Judith Miller for civil contempt in this matter, I wish to make sure that Ms. Miller does not remain in jail because of a misunderstanding regarding the nature or extent of Mr. Libby's waiver of confidentiality. In particular, I wish to make certain that you, as counsel for Mr. Libby, are not laboring under the incorrect impression that communication of a waiver between Mr. Libby and Ms. Miller would be viewed as obstructive conduct. I can assure you that it would not be so viewed.

As you know, Mr. Libby voluntarily agreed to be interviewed by agents of the Federal Bureau of Investigation ("FBI") in October 2003 and November 2003 and thereafter voluntarily testified before the grand jury on two occasions in 2004. Moreover, on January 5, 2004, your client voluntarily signed an express waiver of confidentiality regarding any conversations he had with members of the media regarding Ambassador Joseph Wilson, his trip to Niger in February 2002 and matters relating thereto. As you are aware, the waiver for was presented to your client by FBI agents conducting this investigation and not by White House personnel.

Moreover, in addition to signing a waiver form, Mr. Libby testified as to his memory of his conversations with reporters relevant to this investigation, including relevant conversations with Judith Miller. Mr. Libby has discussed a meeting with Ms. Miller on July 8, 2003, at the St. Regis Hotel and a later conversation between Mr. Libby and Ms. Miller by telephone in the late afternoon on July 12, 2003. Mr. Libby has described his recollection of the substance of those two conversation, without limitation. Thus, Mr. Libby has waived any claim of confidentiality by his actions, separate from signing the written waiver. In addition, on a later date, I understand that reporter Matthew Cooper contacted Mr. Libby and verified that the was indeed a valid waiver of confidentiality, a conversation which I believe preceded a conversation between then counsel for Mr. Cooper and you concerning the validity of that waiver. After that conversation, Mr. Cooper and counsel both publicly confirmed the validity of that waiver my Mr. Libby to Mr. Cooper and Time, Inc. I also understand that counsel for the Washington Post and counsel for NBC each verified the validity of the waiver executed by Mr. Libby with you.

As you are also aware, litigation ensued between Special Counsel and Ms., Miller concerning a subpoena which sought testimony concerning Ms. Miller's conversations with Mr. Libby, though your client was referred to in the subpoena (and publicly filed court documents) as an "identified government official." Ms. Miller and the New York Times maintained in that litigation that there had been no valid waiver by the "identified government official" (Mr. Libby), argued that the waiver form was not valid, and asserted that the waiver was coerced by the official's employer. Special Counsel represented that the waiver was not coerced. Chief Judge Thomas Hogan and the D.C. Circuit Court of Appeals issued rulings enforcing the subpoena and holding Ms. Miller in contempt.

At the time of the argument concerning Ms. Miller's contempt, I was obviously aware of Mr. Libby's waiver and Ms. Miller's refusal to testify int he face of that proffered waiver. Indeed, during the argument on th issue of contempt, after Judge Hogan noted that Ms. Miller held the proverbial key to her jail call in her pocket, I stated that two people held the key to her jail cell: Ms. Miller and her source, who might proffer a waiver to Ms. Miller in the manner akin to the waiver Mr. Cooper received. In the three months that have passed, I have assumed that Ms. Miller chose to remain in contempt either in spite of her awareness of Mr. Libby's waiver or because Mr. Libby has decided that encouraging Ms. Miller to testify to the grand jury was not in his best interest. Indeed, there was press reporting to the same effect:

Sources close to the investigation, and private attorneys representing clients embroiled in the federal probe, said that Libby's failure to produce a personal waiver may have played a significant rile in Miller's decision not to testify about her conversations with Libby, including the one on July 8, 2003.

(American Prospect, August 8, 2005)

At about the same time, Rep. John Conyers wrote (and publicly released) a letter cosigned by several Congressmen asserting: "[Mr. Libby's] failure to grant such a waiver to Ms. Miller has apparently led her to refuse to testify ... and, in turn, led to her recent incarceration for civil contempt. ... We urge you to immediately and publicly rectify this by issuing a personal waiver to Ms. Miller." When asked about the letter and whether Ms. Miller would testify if provided an additional waiver, counsel for Ms. Miller is quoted as saying: " I have no comment about what she might do in circumstances that do not now exist." Given that there is no public response to the Congressman's letter, and in light of the comments of counsel for Ms. Miller, I had assumed that Mr. Libby had simply decided that encouraging Ms. Miller to testify was not in his best interest.

In the last two weeks, however, I have read two articles which cause me to question whether there might be a failure of communication regarding the waiver. First, an account in the Los Angeles Times of August 25, 2005, indicates that reporter Matt Cooper agreed to testify is July only later he confirmed that Mr. Rove's waiver was valid. I particularly noted the statement in the article that "Rove's attorney, meantime, took the view that contacting Cooper would have amounted to interfering with the ongoing court battle between reporter and prosecutor." Reading that account gave me some concern that, however unlikely given the prior waiver by Mr. Libby to Mr. Cooper and others (and given that one of Ms. Miller's attorneys confirmed that same waiver between Mr. Libby and Mr. Cooper), Mr. Libby may not have contacted Ms. Miller to confirm his waiver for fear that such a communication would somehow be viewed as obstructive conduct.

Thereafter, on Friday of last week, there appeared a Reuters article dated September 8, 2005, which quoted one of Ms. Miller's attorneys as stating:

"She is there (in jail) for a reason. At this time, the reason is still there. She made a promise and, unless properly released from her promise by her source, she has no choice but to continue to take the position that she's taking," Abrams said.

He declined comment when asked if Miller, who was sent to jail on July 6 though she never wrote an article about the Plame matter, had reached out anew to her source for a clear release from confidentiality that would allow her to testify.

Thus, counsel for Ms. Miller appears to be operating on the assumption that there has been no "proper" or "clear" release from any promise of confidentiality. If this is so, it may be that Ms. Miller remains in jail because of a misunderstanding.

Given the statement by counsel for Mr. Rove that he felt inhibited from communications between counsel, I wish to make certain that you understand that if Mr. Libby maintains that his waiver is valid and he wishes to communicate that fact either through you or directly to Ms. Miller or her counsel (without discussing the substance of what her testimony might be), I would not view such a communication as obstruction. In fact, I would welcome such a communication reaffirming Mr. Libby's waiver as it might assist the investigation and lead to Ms. Miller's release. (Indeed, Mr. Libby's similar communication with Mr. Cooper and his counsel, as well as with the Washington Post and NBC, were not viewed as obstruction and those communications avoided the prospect of several other reporters being jailed for contempt.) Mr. Libby, of course, retains the right not to so reaffirm his waiver in a manner specific to Ms. Miller if he would prefer that the status quo continue and Ms. Miller remain in jail rather than testify about their conversations.

In closing, let me be clear that I cannot, and am not, seeking to compel a communication from either Ms. Miller or Mr. Libby or their respective counsel, nor do I wish to be copied on any such correspondence or to participate in any such conversation. I am simply making plain that any communication reaffirming Mr. Libby's waiver would not be viewed as obstructive conduct. Rather, it would be viewed as cooperation with the investigation.

Very truly yours,
Patrick J. Fitzgerald

From Libby to Miller

September 15, 2005

Dear Judy,

Your reporting, and you, are missed. Like many Americans, I admire your principled stand. But, like many of your friends and readers, I would welcome you back among the rest of us, doing what you do best -- reporting.

A few days ago, your counsel, Mr. Bennett, asked that I repeat for you the waiver of confidentiality that I specifically gave to your counsel over a year ago. His request surprised me, but I am pleased to comply, if it will speed your return.

I was surprised at Mr. Bennett's request, because my counsel had reassured yours well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we may have had related to the Wilson-Plame matter. As you know, In January 2004 I waived the privilege for the purposes of allowing certain reporters identified by the Special Counsel to testify before the Grand Jury about any discussions I may have had related to the Wilson-Plame matter. The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you. My counsel then called counsel for each of the reporters, including yours, and confirmed that my waiver was voluntary. Your counsel reassured us that he understood this, that your stand was one of principle or otherwise unrelated to us, and that there was nothing more we could do. In all the months since, we have never heard otherwise from anyone on your legal team, until your new counsel's request just a few days ago.

In case you have any concerns about this letter, I note that the Special Counsel wrote to my attorney last week. In his letter, the Special Counsel offered that he would welcome my reaching out to to you to reaffirm my earlier waiver. As you may know by now, my counsel responded to the Special Counsel, repeating all that we had done over a year ago, but offering to do so again. Finally, this letter has been approved by my counsel, and will only reach you after your lawyer's review.

In the spirit of your counsel's and the Special Counsel's request, I would like to dispel any remaining concerns you may have that circumstances forced this waiver upon me. As noted above, my lawyer confirmed my waiver to other reporters just the was he did with your lawyers. Why? Because, as I am sure will not be news to you, the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call. I waived the privilege voluntarily to cooperate with the Grand Jury, but also because the reporter's testimony served my best interests. I believed a year ago, as now, that testimony by all will benefit all.

I admire your principled fight with the Government. But for my part, this is the rare case where this "source" would be better off if you testified. That's one reason why I waived over a year ago, and in large measure , why I write again today. Consider this the Miller Corollary" "It's okay to testify about a privileged communication, when the person you seek to protect has waived the privilege and would be better off if you testify." If you can find a way to testify about discussions we had, if any, that relate to the Wilson-Plame matter, I remain today just as interested as I was over a year ago.

You went into jail in the summer. It's fall now. You will have stories to cover -- Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work -- and life.

Until then, you will remain in my thoughts and prayers,

With Admiration,
Lewis Libby

From Libby's Lawyer, Tate, to Fitzgerald

September 16, 2005

Dear Mr. Fitzgerald:

I am in receipt of your letter of September 12, 2005. To say I am surprised at its content is an understatement, We have followed closely the news reports of Ms. Miller's incarceration, comforted that this was a choice she was making based on personal principles and to protect others with whom she may have spoken. I had told Ms. Miller's counsel over a year ago that our waiver was voluntary, and he had assured me that there was noting my client or I could do that would change her position.

You express a concern in your letter that she may be in jail because of her misunderstanding of Mr. Libby's waiver and that her incorrect impression cannot be cured because counsel may be concerned that any communication between counsel, or directly by the clients, might be viewed as obstructing the investigation. I assure you those are not the facts.

You recite quite correctly the facts regarding Mr. Libby's cooperation with your office and with the grand jury. Mr. Libby did voluntarily provide your team with the written waiver immediately when it was presented to us, well over a year ago. On several occasions, when counsel for other reporters reported to you that they were concerned that the waiver was coerced, you or members of your team reached out to me and asked me to allay their concern. I, with Mr. Libby's approval, did just that. In addition, there were others who asked for such assurances and I gave them. Our position has always been that it is in Mr. Libby's best interest for the reporters to testify fully.

With regard to Ms. Miller, we provided the same assurances long ago. Her attorney and I had several conversations about this matter. Over a year ago, I assured him that Mr. Libby's waiver was voluntary and not coerced and she should accept it for what it was. He assured me that he understood me completely. From these discussions I understood quite clearly that he position was not based on a reluctance to testify about her communications with Mr. Libby, but rather went to matters of journalistic principle and to protecting others with whom she may have spoken. That view was confirmed in my mind since I never received a telephone call from you or members of your tam, as I had on prior occasions, urging me to allay her concerns, which I would willingly have done again. Neither my client nor I have imagined that her decision to go to jail could be affected by anything we could do.

I am dismayed that you had the impression that I had not spoken to counsel for Ms. Miller or that we did not want her to testify. If you had followed your earlier practice of calling me, you would have learned that we had already spoken to her counsel and allayed her concerns. You also would have learned that we encouraged her to testify -- over a year ago -- believing that her testimony, when added to those of other reporters who have testified, will benefit my client.

(One final clarification to your letter may also be useful. Contrary to the implication in your letter, I was the one who related that our waiver was voluntary and covered Mr. Cooper. I offered that clarification to Mr. Cooper's attorney. Mr. Cooper first called Mr. Libby about this matter. Mr. Libby thanked Mr. Cooper for the courtesy of the call, but told Mr. Cooper that -- out of an excess of caution -- it would be better if any such discussions were held between the lawyers. I then clarified to Mr. Cooper's attorney -- who was also Ms. Miller's attorney -- that the waiver specifically covered Mr. Cooper. This is the practice I have followed with every reporter.)

I reiterated our waiver to her counsel yet again a few weeks ago. But because you have expressed these concerns, I will reach out again to Ms. Miller's counsel and assure him and her that Mr. Libby's waiver was voluntary and not coerced. I will send him a copy of this letter and ask him to provided it to Ms. Miller so that she will not be under any misimpressions, if she is. Our hope is that she will be released as soon as possible and that her testimony, when added to those of the other reporters who had called Mr. Libby will assure you and the grand jury that Mr. Libby acted properly and lawfully in all respects.

Please call me if you have any further concerns.

Sincerely,
Joseph A. Tate

From Miller's Lawyer, Abrams, to Libby's Lawyer, Tate

September 29, 2005

Dear Joe [Tate]:

I have read your letter to Patrick J. Fitzgerald dated September 16, 2005 and Lewis Libby's letter to Judith Miller dated September 15, 2005. Because those letters contain certain mis-characterizations of certain discussions you and I had over a year ago concerning the positions of our respective clients, I feel compelled to set the record straight.

It is true that in discussions with me late last summer you told me that Mr. Libby had no objection to Ms. Miller testifying before the grand jury about her meeting with him in early July of 2003. In our conversations, however, you did not say that Mr. Libby's written waiver was uncoerced. In fact, you said quite the opposite. You told me that the signed waiver was by its nature coerced and had been required as a condition for Mr. Libby's continued employment at the White House. You compared the coercion to that inherent in the effective bar imposed upon White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion by your client of the Fifth Amendment, would result in his dismissal. You persuasively mocked the notion that any waiver signed under such circumstances could be deemed voluntary.

You also state in your letter that I "assured" you during our conversation of last summer "that there was nothing [Mr. Libby or you] could do" that would change Ms. Miller's position. That is simply inaccurate. Not only have I never said that, but I have never said anything even resembling that to you. I did say -- more than once, and quite accurately -- that Ms. Miller was acting out of principle and that I fully expected her to continue to refuse to reveal the identity of any confidential source; but you neither asked for, nor received any "assurances" about any steps Mr. Libby might take in the future or their consequences. Your similar assertions in your letter of September 16, 2005 that you told me that you and your client "encouraged" Ms. Miller to testify "over a year ago" are similarly inaccurate.

It is certainly true, as your letter suggests, that there were several factors that led Ms. Miller to conclude that she could not testify before the grand jury consistent with her journalistic principles. However, as to the issue of Mr. Libby's waiver, the message you sent to me was viewed by Ms. Miller as inherently "mixed" (i.e., saying that Mr. Libby's written waiver had been coerced on the one hand but that he had no objection to her testifying on the other). The context in which you relayed that message made it even less clear precisely what Mr. Libby wanted of Ms. Miller. And, notwithstanding that Ms. Miller had known Mr. Libby for some time, the fact that he made no effort to contact Ms. Miller directly about this matter (even, it turned out, when he was specifically and publicly requested by a member of Congress to provide a personalized waiver to her), led her to conclude that Mr. Libby's waiver was not voluntary. Nor, in fact was there any public of private response by him or you in the face of repeated public statements by Ms. Miller and myself to the effect that no satisfactory personal waiver had been obtained. Although, as you have indicated in your letter to Mr. Fitzgerald, other reporters may have been satisfied with representations from you about the voluntary nature of Mr. Libby's "waiver," Ms. Miller was not. Her public statements on the matter could not have been clearer. In the absence of what she could confidently treat as a truly uncoerced personal waiver from her source, when she heard nothing but silence from Mr. Libby for the many months and days leading up to (and then long after) her incarceration, she concluded that she could not fully rely and act upon the information you provided.

Mr. Libby's September 15, 2005 letter to Ms. Miller adopts the same erroneous characterizations of our conversations as those in your September 16, 2005 letter to Mr. Fitzgerald. For example, Mr. Libby states in that letter that you affirmatively requested of me, on his behalf, that Ms. Miller testify; no such request was ever made to me. He also repeats your assertion that I "assured" you that Ms. Miller's stand was "unrelated to" Mr. Libby and that there was "nothing more" you or Mr. Libby could do. That statement is also incorrect. I assured you of no such thing.

I offer a final thought. In both your letter and that of Mr. Libby, statements are made to the effect that Mr. Libby now desires Ms. Miller to testify because he believes her testimony would "benefit" him. I can neither confirm nor deny that. But so there is no possible misunderstanding, Ms. Miller's decision about whether to testify has been and will be wholly unaffected by whether it assists your client or not and will be based on, among other things, whether she concludes that your client's waiver is truly voluntary. His recent personal call and his personal letter to her are certainly helpful in that regard.

Sincerely,
Floyd Abrams

To Miller's Lawyer, Abrams, from Libby's Lawyer, Tate

October 3, 2005

Dear Floyd [Abrams]:

I was quite disappointed at your letter and your subsequent softball television interview with your son. I had not intended to respond to your letter because I did not think that this should be a battle between lawyers on who was best at "spin control," but your letter and interview now require a response.

Our conversations have been, and I hope will be, good faith effort to zealously represent our clients. Your recollection of the words exchanged between us, and the meaning you have given to them, is quite different than mine. I do not believe that my words could be interpreted in any way to say that the waiver was anything other than voluntary and not-coerced. I used those words. I am pleased that you at least admitted that I said we had no objection to Ms. Miller's testifying about her conversations with my client.

I recall that you said your client felt that when the White House instructed staff to cooperate, these waivers were inherently coercive. As an aside, you and I discussed whether when an employer instructs and employee to sit for an interview in the course of an internal investigation, that might be considered coercive because if the employee refuses, he or she could be terminated. You asked if my client would be fired if he did not sign the waiver. I said I did not know because he voluntarily signed it. That was the end of our conversation on that point.

The significant fact that you continue to omit, and that seems to be lost here, is that you never told me that your client did not accept my representation of voluntariness or that she wanted to speak personally with my client. Even you can't spin those facts away. That is the answer to this unfortunate circumstance of your client's interpretation, not any failure on our part.

I am sorry you found any ambiguity in my words and that you never informed me that your client wanted the personal contact from my client. She had the personal waiver. I gave it to you when we spoke. It was not generic. A personal contact is different, and you did not tell me she wanted that. Fortunately, when Bob Bennett called and asked for the personal contact, we immediately accommodated him and the situation was immediately resolved.

My hope is that this media circus will end and our clients can get back to their normal lives. I hope we will not have any misunderstanding of our role in accomplishing that.

Sincerely,
Joseph A. Tate

posted by cboldt  # 12/26/2006 06:24:00 PM